Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America

Cisar Rodriguez-Garavito
89 Texas L. Rev. 1669

During the last two decades, Latin American courts, activists, and scholars have developed legal theories, strategies, and doctrines aimed at fulfilling the promise of socioeconomic rights in contexts marked by deprivation and inequality. For example, in 2004, the Colombian Constitutional Court (CCC) aggregated the constitutional complaints (tutelas) of 1,150 displaced families and handed down its most ambitious ruling in its two decades of existence: Judgment T-025, in which the court declared that the humanitarian emergency caused by forced displacement constituted an “unconstitutional state of affairs,” and the court ordered a series of structural measures that has spawned a remedial process that continues today.

Professor Rodríguez-Garavito analyzes the CCC’s decisions in such “structural cases,” positing that that this judicial activism, although particularly visible in the CCC’s jurisprudence, is part of an emerging trend in Latin America and other regions of the global south, including India and South Africa. However, notwithstanding the proliferation of activist rulings and the resultant increase in literature on the justiciability of such activism, Rodríguez-Garavito claims that the exclusive emphasis on the production phase of judgments has created an analytical and practical blind spot with regard to the implementation stage.

Rodríguez-Garavito considers this blind spot and attempts to answer the question of the fate of activist decisions by laying out an analytical framework for understanding the effects of such decisions, and accounting for the different levels of impact of activist rulings. Rodríguez-Garavito empirically grounds this analysis in a larger comparative study of the impact of the CCC’s rulings in other structural cases and proposes a twofold argument. First, to capture the full range of effects of court decisions, impact studies need to enlarge the conventional theoretical and methodological field of vision. Second, with regard to court-controlled factors that may enhance a given ruling’s overall impact, it is likely to be higher when courts engage in “dialogic activism” through detailed institutional mechanisms.